Thought Leadership

The upcoming federal election is drawing near. You may be thinking about exercising your democratic and constitutional right to vote – you may not be. You may never even consider participating in the democratic process; after all, it is a right, not an obligation, correct? Well, yes, though recent amendments to the Canada Elections Act (“the Act”) are forcing many entities to be mindful of the political arena.

While recent amendments to the Act do not obligate anyone to vote, they certainly provide for legal considerations for those who have things to say in relation to policy issues during what the Act terms as the “pre-election period” and the “election period”. The “pre-election period” began on June 30, 2019 and continues until the “election period”, which begins when the federal government drops the writ in advance of an anticipated election date of October 21. The latest date the federal government can begin the election period is September 15, 2019.

Partisan Activity: an activity, including canvassing door-to-door, making telephone calls to electors and organizing rallies, that is carried out by a third party — a person or group other than a political party that is registered under an Act of a province — and that promotes or opposes a registered party or eligible party or the election of a potential candidate, nomination contestant, candidate or leader of a registered party or eligible party, otherwise than by taking a position on an issue with which any such party or person is associated. It does not include election advertising, partisan advertising or a fundraising activity.

Election Surveys: a survey respecting whether persons intend to vote at an election or who they voted for or will vote for at an election or respecting an issue with which a registered party or candidate is associated.

Partisan Advertising: the transmission to the public by any means during a pre-election period of an advertising message that promotes or opposes a registered party or eligible party or the election of a potential candidate, nomination contestant or leader of a registered party or eligible party, otherwise than by taking a position on an issue with which any such party or person is associated.

Election Advertising: means the transmission to the public by any means during an election period of an advertising message that promotes or opposes a registered party or the election of a candidate, including by taking a position on an issue with which a registered party or candidate is associated.

If you or your organization is engaged in any of the four broad categories above, you should seek legal advice to ensure you are compliant with the Act. You may be required, for example, to register under the Act as a third party and you may be limited as to what you can communicate and what you can spend during either or both of the pre-election period and the election periods.

There are many issues pertaining to the Act’s recent amendments worthy of analysis but this article’s focus is on Partisan Advertising and Election Advertising, particularly in relation to issue-based advertising, which is purportedly unregulated in the context of Partisan Advertising but is regulated in the context of Election Advertising. Simply understood for the purposes of this discussion, issue-based advertising is the mass communication of a message taking a position on an issue with which a registered party or candidate is associated, such as climate change.

Any organization that spends more than $500, a relatively low amount in the context of mass communication, on issue advertising is obligated to register with Elections Canada and be subject to a spending cap during the election period. Media reports detailing this requirement led to public criticism as it was interpreted to mean climate change advocates were now limited in their freedom of expression¹, a position Elections Canada would later clarify while nonetheless affirming the duty to register.²

The impetus for the legislative amendments are straight forward: they provide for transparency as to who is spending money on advancing their respective issues of interest, a consideration voters can assess as they independently exercise their democratic right to vote. This is an aspect of the egalitarian model of elections, which is concerned with ensuring the most affluent in society do not have undue influence in election results.³

Courts have consistently held such schemes are a breach of section 2(b) of the Charter of Rights and Freedoms but are saved under section 1. Section 1 contains the meat of the analysis is as it asks whether infringing legislation is a “reasonable limit” on Charter rights.

In Harper v Canada (Attorney General)4, the Supreme Court of Canada upheld spending limits on third-party federal election advertising as a reasonable limit on Freedom of Expression. In BCTF v British Columbia5, the British Columbia Court of Appeal, in assessing legislation respecting pre-election regulation, concurred with the Supreme Court of British Columbia in determining limitations on pre-election expression was not a reasonable limit under section 1 of the Charter. The court reasoned the legislation overshot the overall objective of electoral fairness due to the fact it captured otherwise constitutionally protected speech commenting on the wisdom of proposed legislation.6

The BCTF decision may explain why the federal government decided not to capture “issue advertising” in its definition of “Partisan Advertising”, which can only occur in the pre-election period. As the decision did not take issue with limitations during the election period, consistent with the Harper decision, the federal government likely felt it safe to prescribe limitations on “election advertising”, which can only occur in the “election period”.

While the above authorities likely provide for the federal government’s confidence in the Act’s constitutionality, of course it ultimately depends on how it is applied. As the reasoning in BCTF dictates, limitations in respect of pre-election activity is susceptible to failing the minimal impairment aspect of section 1 of the Charter; though, BCTF was primarily concerned with the limitation on expression when the legislature was in session, meaning it did not necessarily say that all issue-based advertising should be allowed in a pre-election period.

As stated by the Supreme Court of Canada, expression in respect of political issues is an aspect of the “core” of our Freedom of Expression:⁷

Some restrictions on free expression may be necessary and justified and entirely compatible with a free and democratic society. But restrictions which touch the critical core of social and political debate require particularly close consideration because of the dangers inherent in state censorship of such debate. This is of particular importance under s. 1 of the Charter which expressly requires the court to have regard to whether the limits are reasonable and justified in a free and democratic society.

While the amendments to the Act purport not to limit or qualify issue-based pre-election period advertising, such advertising may nonetheless invite scrutiny if it promotes a political party or candidate.

What happens in the pre-election period context if a message is both issue-based and a promotion of a candidate/party? Indeed, it is difficult to imagine a circumstance whereby such a message would not be both, unless it stated, “vote for X, for no reason at all”. Where pre-election period advertising relates to a candidate/party and an issue, the question will likely be whether the advertising is primarily rooted in supporting a party or candidate. The boundary between these categories is bound to be ambiguous.

That ambiguity may create a chill whereby persons or entities are fearful of exercising their otherwise constitutionally protected “core” right to express themselves. Indeed, the new rules are not simple and often will require legal advice to interpret in relation to specific facts. That requirement may be too onerous for some.

Even in the election period context, in which the Harper and BCTF decisions likely provide for the Act’s constitutional security, there may be thorny issues. For example, if the Commissioner of Canada Elections frequently deems issue-based advertising to be election advertising, even where the communicating entity had no subjective belief that it was conducting election advertising, entities could unknowingly be caught by the Act.

Depending on how the Act is applied, there lies potential circumstances where the new rules could invite a rebuke from the courts as an unreasonable limit on pre-election expression. As usual, time will tell.

Optimally, entities will never be involved in such litigation if they take the steps to ascertain they are compliant with the Act.

This update is intended for general information only. If you have specific questions or concerns as to whether you are at risk of being captured by the new Canada Elections Act rules, please contact John Samms.

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